The Legal Systems Section of the OSCE Mission in Kosovo has issued a critical analysis of domestic war crimes trials in the province since 1999. It reports that the trial procedures were severely flawed at the outset but have been improving substantially. RFE/RL finds that the analysis, in effect, provides case studies for how war crimes trials ought to be conducted.

Prague, 27 September 2002 (RFE/RL) -- The war crimes trials of Nazi leaders in Nuremberg after World War II broke new ground and were open to criticism as "victors' justice," and as prosecutions of actions that were not statutory crimes at the time of their commission.

The United Nations International Criminal Tribunal for the former Yugoslavia in The Hague -- whose most noted criminal trial, that of former Serbian leader Slobodan Milosevic, resumed yesterday after a two-week recess -- avoids that criticism by relying on international human rights treaties and other agreements for its fundamental legality.

Legal analyst Ioan-Dragoft Tudorache, one of the authors of a critical analysis of war crimes trials in Kosovo since 1999, said these domestic trials have an even firmer basis in law. The suspects stand charged of violating criminal statutes that have been on the books in Yugoslavia for many years. Tudorache discussed this with our correspondent in a telephone interview. "Here, the domestic courts are basing their indictments and trials on the domestic applicable law, which is provisions of the Yugoslav Criminal Code," Tudorache said.

The United Nations mission in Kosovo in 1999 began establishing a justice system for the province. In June of that year, Kosovo's courts started a series of prosecutions of war crimes defendants. Tudorache said these domestic trials supplemented, but did not compete with, prosecutions initiated by the International Criminal Tribunal for the former Yugoslavia in The Hague, or ICTY. "The ICTY has its own jurisdiction and competence, which, of course, covers crimes committed on the territory of Yugoslavia, but [does] not exclude the competence of the domestic courts in the various republics," Tudorache said.

The analysis examines 17 trials with a total of 30 defendants. Many of the trials resulted in acquittals or were sent back upon appeal.

Tudorache helped to prepare the analysis for the OSCE Mission in Kosovo and its Legal Systems Monitoring Section. In examining shortcomings, especially in the early trials, the analysis report draws, often by negative reference, a clear picture of how such trials ought to be conducted.

An effective criminal prosecution, Tudorache noted, has its roots in the original indictment, or formal accusation. That is the legal instrument that notifies a defendant of the charges against him or her and the basis for those charges.

It also provides the outline for the prosecutor's case. The analysis says that a well-organized, structured indictment is needed especially in complex cases alleging multiple victims and a range of criminal acts over a period of time, as many war crimes prosecutions do. "A very clear and well-structured indictment gives [the prosecutor] a good outline for the evidence that would be used in trial," Tudorache said.

Among the common failings in the early war crimes trials in Kosovo were what the OSCE analysis calls undercharging and overcharging. Tudorache says that undercharging often resulted when prosecutors focused on ordinary crimes of the Criminal Code instead of war crimes that could have been charged. "The examples that we had were with prosecutors charging what we called 'ordinary crimes,' which would be crimes from the ordinary chapters of the Criminal Code, [such as arson], destruction of property, rather than charging under the war crime statutes," Tudorache said.

He said overcharging occurred frequently when prosecutors sought to prosecute war crimes, even genocide, without sufficient evidence. "In these cases and from the readings of those indictments, it was obvious that there was no clear factual description, no clear-cut elements of proof and no legal assessment whatsoever -- solid legal assessment -- of these prosecutors at that time in order to justify charging genocide rather than war crimes against the population, or anything else," Tudorache said.

The analysis also dwelled on the importance of a clear understanding by prosecutors of the elements of proof of the crimes they were alleging. For instance, in a charge of genocide it is not enough to prove that an individual killed or drove large numbers of people from their homes. One of the elements of proof in genocide is intent: no intent, no genocide. Usual evidence of intent, Tudorache said, is proof that the behavior was systematic. "It will be very difficult in practice to provide proof of the genocidal intent of an individual if the crimes were not widespread and if the crime charged was not backed by an organization or system," Tudorache said.

Another example of an essential element of proof is the requirement in war crimes cases that a state of armed conflict be shown to have existed. There may be crimes against humanity, or other egregious offenses, but if there is no armed conflict, there is no war crime.

The OSCE analysis showed that sufficient resources to conduct trials also are necessary for fair jurisprudence. Kosovo's Supreme Court reversed guilty verdicts based on possible inconsistencies in witness testimony. But the court had to rely on summaries of witness testimony rather than expensive verbatim transcripts.

In some cases, defendants were unable to call needed defense witnesses -- often Serbs living in Serbia proper -- because there were insufficient provisions for witness transport and protection.